11/6/2017 7:33 PM 16CV42248 1 2 3 4 IN THE CIRCUIT COURT OF THE STATE OF OREGON 5 FOR THE COUNTY OF COOS 6 DARLA HAMBLIN, Plaintiff, 7 8 9 10 vs. KEMPER SPORTS MANAGEMENT, INC. d/b/a BANDON DUNES GOLF RESORT; HANK HICKOX; and ALEXANDER WHITE, 11 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 16CV42248 DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM 12 13 I. INTRODUCTION 14 Plaintiff Darla Hamblin has gotten everything she asked for from her employer, 15 defendant KemperSports Management, Inc. (“Kemper” or the “Company”). When plaintiff 16 complained in September 2015 of two instances of alleged sexual harassment by her long-time 17 friend and supervisor, defendant Hank Hickox, her only requests were that he apologize to her, 18 and that he be “swiftly and gracefully exited” from the Company. Hickox did apologize for his 19 behavior and, due in large part to plaintiff’s complaint, was ultimately exited from Kemper in 20 November 2016. Nevertheless, plaintiff filed this lawsuit one month later, on December 23, 21 2016. When asked at her deposition about what else she was hoping to gain, plaintiff replied that 22 “[t]his case is about money.” 23 Unfortunately for plaintiff, there is no claim in this lawsuit that would entitle her to 24 recover damages. Though plaintiff now attempts to trot out literally a decade’s worth of 25 allegations against Hickox, those allegations are time-barred, and the timely allegations of 26 harassment are simply too sporadic and inoffensive to rise to the level of actionable harassment. Page 1 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 But even if that were not the case, Kemper is entitled to an affirmative defense against plaintiff’s 2 harassment claim; plaintiff failed to utilize Kemper’s harassment reporting procedures until 3 September 2015, and then, when she did, Kemper responded reasonably given her assertions that 4 she wanted her complaint kept “as confidential as possible for as long as possible.” Plaintiff’s 5 sex discrimination and retaliation claims fare no better; she does not allege a single act that 6 would amount to a materially adverse action. Finally, as for plaintiff’s common law tort claims, 7 plaintiff cannot adduce evidence that Hickox’s after-work, off-premises behavior was 8 “authorized” by Kemper, or occurred during the space and time limits of Hickox’s work, such 9 that Kemper would be liable. 10 II. SUMMARY OF THE FACTS 11 A. 12 Defendant KemperSports Management, Inc. (“Kemper” or the “Company”) manages golf Plaintiff’s Employment with Kemper 13 courses around the country. Bandon Dunes Golf Resort (“Bandon Dunes”), on the Southern 14 Oregon coast, is its premiere property. Among its other responsibilities, Kemper employs all of 15 the employees at Bandon Dunes. 16 Plaintiff Darla Hamblin was hired at Bandon Dunes as a bartender in June 2000. 17 Defendant Hank Hickox was the General Manager (“GM”) at the time of her hire and throughout 18 her employment. Hickox was a huge fan and ally of plaintiff’s throughout most of her 19 employment; he was responsible for her regular promotions and raises, as well as nominating her 20 for Kemper’s Hospitality Professional of the Year award in early 2015. Indeed, plaintiff 21 concedes that she, Hickox, and Hickox’s wife, Johnna, became quite close over the years, and 22 that it was not uncommon for them to say “I love you,” to one another. 23 /// 24 /// 25 /// 26 /// Page 2 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 B. 1 2 3 September 21, 2015: Plaintiff Reports Allegedly Harassing Behavior by Hickox for the First Time, and Asks That It Be Kept “as Confidential as Possible, for as Long as Possible.” Although plaintiff now claims she was subjected to inappropriate comments and touching 4 from Hickox for over a decade, there were zero signs of any problems in their relationship until 5 late 2015. On July 29, 2015, plaintiff, Hickox, and several other Bandon Dunes employees got 6 together for after-work dinner and drinks off-premises. Hickox became too intoxicated to drive 7 his car home, and plaintiff and a coworker, Joe Lowry, arranged to drop Hickox off. As he was 8 saying goodnight, Hickox reached through the open window of the car plaintiff was driving, and 9 kissed her, allegedly sticking his tongue in her mouth. Plaintiff confronted Hickox about the 10 incident two days later, and though Hickox had no recollection of the event, plaintiff has 11 represented that he was “contrite and apologetic.” 12 Plaintiff did not notify anyone in Kemper management about the kiss until almost two 13 months later, when on September 21, 2015, she reached out to Susan Sommer-Evans, the Human 14 Resources Director located in Kemper’s home office in Chicago. According to plaintiff, the 15 following event prompted that call: On September 17, 2015, she had a conversation with Hickox 16 in which they were discussing Hickox’s upcoming Halloween party. Hickox asked her to wear a 17 costume to the party, and specifically suggested she could wear tights, dressing as Heidi, or a 18 maiden. Plaintiff thought about the conversation that night, and the next day went back to 19 Hickox to tell him his statements the previous day were unprofessional. Hickox reportedly 20 responded that their “relationship was going to change.” Plaintiff now contends she took this as 21 a threat that she could lose her job. 22 The kissing incident and Hickox’s statements about the costume party were the only two 23 allegedly harassing events that plaintiff reported to Sommers-Evans during their call on 24 September 21, 2015. Plaintiff further told Sommers-Evans that she wanted the information to 25 remain “as confidential as possible for as long as possible.” Following this call, plaintiff texted 26 /// Page 3 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 Lowry: “I have confidence in Susan’s guidance, though she said she doesn’t really know what 2 the best thing to do is at the moment, so it’s just between us for now, which is fine.” 3 The following week, and with plaintiff’s permission, Sommers-Evans informed Kemper 4 Executive Vice President, Gary Binder, regarding plaintiff’s complaint. Binder is the corporate 5 executive who oversees Bandon Dunes’ operations, and because plaintiff’s complaint implicated 6 Hickox, the GM and Binder’s direct report, Sommers-Evans expected that Binder would manage 7 Kemper’s response. For various business-related reasons—both on Binder’s and plaintiff’s 8 part—Binder did not speak with plaintiff until November 19, 2015, via telephone. During that 9 call, as she would go on to state many more times, plaintiff stated that she thought the ideal 10 remedy would be for Hickox to be “swiftly and gracefully exited.” Plaintiff also again asked that 11 the matter be kept confidential. 12 It was during this timeframe that Johnna Hickox was dealing with a second very serious 13 bout of cancer. It was, in part, because of this that Binder decided to not approach Hickox with 14 plaintiff’s concerns, but rather to monitor and observe Hickox on his (Binder’s) almost monthly 15 trips to Bandon Dunes. As always, Binder observed nothing inappropriate from Hickox during 16 this period. Binder also did not notify anyone else in Kemper management about the complaint. 17 C. 18 19 March 2016: Due to a Reorganization, Hickox, Still Unaware of Plaintiff’s Complaint, Becomes Plaintiff’s and Three Others Manager’s Direct Supervisors. In early March 2016, a reshuffling of responsibilities at Bandon Dunes led to a change in 20 the reporting structure for a number of managers, including plaintiff. Rather than continuing to 21 report to her friend, James Turner, plaintiff and three other managers, Lowry, Mark Bergmann, 22 and Richard Muirhead, began reporting directly to Hickox.1 As far as Kemper is aware, none of 23 /// 24 25 26 1 Plaintiff has tried to contend in the litigation that having to report to Hickox was retaliatory, but in fact the record is absolutely clear that she wanted to continue reporting to Hickox, and it was White who ultimately dissuaded her from that decision. Page 4 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 the other managers (Lowry, Bergmann, and Muirhead) had ever complained of harassment or 2 discrimination. 3 D. 4 5 May 6, 2016: Plaintiff Complains to White After Hickox Acts “Dismissive” of Her in Two Meetings; Kemper Immediately Initiates an Investigation. On April 6, 2016, plaintiff was in a managers’ meeting with Hickox in which she 6 contends he was disrespectful and condescending toward her. Plaintiff contends another such 7 meeting, in which Hickox was “dismissive,” of her marketing ideas, occurred in May 2016. 8 9 Apparently prompted by Hickox’s behavior in these meetings, on May 6, 2016, plaintiff finally went to White, claiming that Hickox was retaliating against her. Just a few days later, 10 plaintiff met with White and Binder to discuss her ongoing concerns about working with Hickox, 11 and indicated she was ready to make public her complaint. 12 Following plaintiff’s lead, Binder then immediately notified Kemper’s Vice President of 13 Human Resources, Heather Margulis, and President, Josh Lesnik, of plaintiff’s complaints. 14 Margulis and White promptly investigated the complaint, with the assistance of outside counsel. 15 Their investigation included interviewing both Hickox and plaintiff. White also spoke to the 16 only witness to the kissing incident, Lowry, who reported that he did not think what had 17 happened was “that big of a deal.” Kemper was diligent about keeping plaintiff abreast of 18 White’s and Margulis’ progress during this time. 19 Plaintiff concedes she was initially satisfied with the Company’s response, at least 20 through May 27, 2016. On May 26, 2016, plaintiff affirmatively stated in an email to White and 21 Margulis that she was “comfortable with the reporting line and daily interaction as it currently 22 stands.” The next day, plaintiff left a voicemail for White, thanking him for his support and 23 stating she felt relief afterwards, and that her anxiety about the situation was “lifting.” As 24 plaintiff had earlier suggested, White also arranged a meeting for Hickox to apologize to plaintiff 25 on May 29, 2016, with White present; however, plaintiff apparently did not find the apology 26 convincing. Page 5 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 E. 1 2 June 15, 2016: Kemper Issues a Final Written Warning to Hickox. As a result of plaintiff’s complaint, Kemper issued a final written warning to Hickox on 3 June 15, 2016, and written warnings to both Sommers-Evans and Binder on June 27, 2016, for 4 their failure to properly notify senior management of plaintiff’s complaint when it first arose in 5 September 2015. 6 Hickox also voluntarily agreed to enter an alcohol recovery program, and went out on 7 leave on June 10, 2016. Plaintiff contends that during Hickox’s absence, Lesnik made promises 8 to her that he (Lesnik) was taking care of the situation—promises that she interpreted as meaning 9 that Hickox would be quickly exited from the Company once he returned. Instead, Kemper 10 made a formal announcement that Hickox would be retiring at the end of 2017, a full 18 months 11 away. Apparently galled by the fact that Kemper was not letting her call all the shots, plaintiff 12 filed an administrative complaint with the Oregon Bureau of Labor and Industries (“BOLI”) on 13 August 4, 2016. 14 F. 15 16 17 November 2016: Kemper Separates Hickox Based, in Part, on His Conduct Toward Plaintiff. Hickox returned from his leave on August 8, 2016. At White’s suggestion, however, plaintiff continued to report to the interim GM, Turner, even after Hickox’s return. 18 On September 8, 2016, Hickox was in a meeting with some of his senior managers, 19 including Bandon Dunes controller, Breanna Quattrocchi. During the meeting, Hickox lost his 20 temper, leaned in with his face close to Quattrocchi’s, and yelled at her. Another manager who 21 was present intervened, and told Hickox to knock it off. Together, Margulis and White 22 conducted a thorough investigation into the incident, including interviewing eight witnesses. 23 When the investigation was over, and given that Hickox was already on a final written warning 24 as a result of his conduct towards plaintiff, Kemper decided to exit Hickox from the Company, 25 which became effective in November 2016. 26 /// Page 6 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 Despite getting exactly what she wanted (Hickox’s departure), plaintiff filed this lawsuit 2 on December 23, 2016. Plaintiff remains a current employee at Bandon Dunes, and reports 3 directly to the new GM, Don Crowe, who she testified treats her fairly and with whom she likes 4 working. In her 17 years at Bandon Dunes, plaintiff has never received discipline, been 5 demoted, or had her pay cut. Although she does not allege that anyone other than Hickox has 6 harassed her in over a decade, she nonetheless applied for a leave of absence in September 2017, 7 due to an unspecified “hostile work environment.” She is not expected to return to work until 8 late 2017. 9 III. CLAIMS AND ASSESSMENT 10 A. 11 Plaintiff has alleged just two timely harassing acts by Hickox: the discussion she had with Plaintiff Cannot Prove Sexual Harassment. 12 him about wearing a costume to the Halloween party, and an incident during a Super Bowl party 13 in 2016 in which he “grabbed” her by the arm and thrusted his pelvis in her direction in an 14 attempt to get her to dance with him, which she declined. These allegations do not amount to 15 actionable hostile work environment harassment because they do not rise to the requisite level of 16 “severe or pervasive” conduct. See Gresham v. Safeway, Inc., Civ. No. 08-6241-AA, 2010 WL 17 437982, at *8 (D Or Feb. 3, 2010) (citing Ellison v. Brady, 924 F2d 872, 875-76 (9th Cir 1991); 18 Fred Meyer, Inc. v. Bureau of Labor & Indus., 152 Or App 302, 307, 954 P2d 804 (1998)). 19 All of plaintiff’s other allegations, including the kissing incident on July 29, 2015, are 20 time-barred. Plaintiff had one year from the date of the incident to either file an administrative 21 complaint or initiate litigation. See ORS 659A.875(1) & ORS 659A.820(2). She failed to do so. 22 Plaintiff also cannot rely on the continuing violation doctrine to rehabilitate this allegation either. 23 The July 2015 kissing incident—the only act of physical harassment that plaintiff alleges, which 24 also occurred off-premises—is simply too dissimilar to her timely allegations to invoke the 25 continuing violation doctrine. See Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 474 (1st Cir. 26 2010) (later conduct must “substantially relate” to time-barred conduct to support a continuing Page 7 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 violation theory); Rowe v. Hussman Corp., 381 F.3d 775 (8th Cir. 2004) (untimely allegations 2 revived because they were similar in nature, frequency, and severity to timely allegation).2 3 Even if the Court considers Hickox’s behavior during the July 2015 incident, though, that 4 act (a single kiss) does not carry the day for her. Courts routinely decline to find harassment 5 where far more severe conduct is alleged. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 6 926 (9th Cir. 2000) (finding one incident of breast touching not sufficiently severe to constitute 7 actionable harassment, noting “no reasonable woman in Brooks’ position would believe that [her 8 co-worker’s] misconduct had permanently altered the terms or conditions of her employment”); 9 Jones v. Clinton, 990 F. Supp. 657, 675 (E.D. Ark. 1998) (finding governor’s alleged act of 10 exposing his penis to a female employee not sufficiently severe, noting “[t]his is thus not one of 11 those exceptional cases in which a single incident of sexual harassment, such as an assault, was 12 deemed sufficient to state a claim of hostile work environment sexual harassment”). 13 Moreover, Kemper can avail itself of the Faragher/Ellerth affirmative defense. That 14 defense operates as a bar to liability for harassment when: (1) the employer exercised reasonable 15 care to prevent and correct promptly any harassing behavior; and (2) the employee unreasonably 16 failed to take advantage of any preventive or corrective opportunities provided by the employer 17 to avoid harm otherwise. Garcez v. Freightliner Corp., 188 Or App 397, 411, 72 P3d 78 (2003) 18 (quoting Burlington Indust., Inc. v. Ellerth, 524 US 742, 765 (1998); citing Faragher v. City of 19 Boca Raton, 524 US 775, 807 (1998)); Jernigan v. Alderwoods Grp., Inc., 489 F Supp 2d 1180, 20 1194-98 (D Or 2007) (analyzing hostile work environment claim under ORS 659A.030); see also 21 Harris v. Pameco Corp., 170 Or App 164, 176, 12 P3d 524 (2000) (“[B]ecause ORS 659.030 22 23 24 25 26 2 Oregon’s discrimination statute, ORS 659A.030, was premised on Title VII, and Oregon courts routinely look to federal case law for guidance in interpreting ORS 659A.030. A.L.P., Inc. v Bureau of Labor and Industries, 161 Or. App. 417, 422 (1999) (ORS 659.030 is patterned after Title VII and we therefore consider federal cases ‘instructive.’); Mains v. II Morrow, Inc., 128 Or. App. 625, 634 (1994) (“Because Title VII was the basis for ORS 659A.030, the federal cases are instructive.”). Page 8 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 was modeled after Title VII of the federal Civil Rights Act of 1964, 42 USC § 2000E et seq, 2 federal cases interpreting Title VII are instructive.”). Kemper easily meets the first prong; it 3 maintains an anti-harassment policy and procedures for ensuring that harassment is reported and 4 corrected. That plaintiff failed to avail herself of those procedures until September 21, 2015, is 5 not Kemper’s doing. 6 With regard to the second prong, plaintiff may argue that Kemper cannot prove it took 7 “prompt” action to correct the harassing behavior; however, any delay was based on Binder’s 8 verifiable understanding that, up until early May 2016, plaintiff did not want to do anything 9 formal with the complaint. Once Kemper was formally on notice of plaintiff’s allegations, the 10 Company took prompt, remedial action, issued Hickox a final written warning, and encouraged 11 plaintiff to report any repeat instances of inappropriate conduct. Additionally, Hickox issued 12 plaintiff an apology and voluntarily entered inpatient treatment for alcohol abuse (due, in part, to 13 the role alcohol played in the July 2015 incident). Kemper also ensured (and, through White, 14 actually insisted) that plaintiff no longer report to Hickox. Plaintiff reported no new instances of 15 inappropriate conduct by Hickox (or anyone else) after her initial complaint, despite Kemper’s 16 urging. 17 18 19 B. Plaintiff Does Not Allege Any Adverse Action that Would Support Her Sex Discrimination or Retaliation Claims, Nor Can She Prove Mistreatment Because of Her Sex or Protected Complaints. The basis of plaintiff’s sex discrimination claim is not at all clear. As pleaded, it merely 20 piggy-backs on her sex harassment claim, referring to being sexually harassed, and being 21 subjected to a hostile work environment and (unspecified) disparate treatment. For the reasons 22 discussed supra Section III.A, plaintiff cannot sustain her hostile work environment harassment 23 claim. With regard to the “disparate treatment” claim, such claim must be premised on a 24 material change to the terms, conditions, or privileges of plaintiff’s employment. See, e.g., King 25 v. Slater, Nos. 98-639-KI, 98-1292-KI, 1999 US Dist LEXIS 17021, at **9–10, 1999 WL 26 978020 (D Or Oct 26, 1999). Examples of material changes in the terms, conditions, or Page 9 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 privileges of employment include failure to hire, failure to promote, demotion, termination, and 2 significantly diminished job responsibilities. See ORS 659A.030(1)(a), (b); Bowman v. Shawnee 3 State Univ., 220 F3d 456, 461–462 (6th Cir 2000) (materially adverse actions include “‘a 4 termination of employment, a demotion evidenced by a decrease in wage or salary, a less 5 distinguished title, a material loss of benefits, [or] significantly diminished material 6 responsibilities’”) (quoting Hollins v. Atlantic Co., 188 F3d 652, 662 (6th Cir 1999)). 7 Plaintiff alleges nothing remotely close to that. The most she contends is that Kemper 8 excluded her from a handful of meetings and that Hickox treated her “dismissively.” These are 9 not adverse actions as a matter of law. See Hess v. Multnomah County, 216 F Supp2d 1140, 10 1154–1155 (D Or 2001) (refusal to allow plaintiff to attend community activities and “harsh and 11 demeaning” conduct were not adverse employment actions). Indeed, even under the more 12 permissive standard applicable to retaliation claims, plaintiff’s allegations are not actionable. 13 Siring v. Oregon State Bd. of Higher Educ., 927 F Supp 2d 1030, 1061-62 (D Or 2012) (defining 14 adverse action for purposes of retaliation under Oregon law as an act that would be perceived by 15 a reasonable employee to be “materially adverse,” to the point that it could “well dissuade a 16 reasonable employee from opposing an unlawful employment practice”); Steele v. Mayoral, 231 17 Or App 603, 616, 220 P3d 761, 770 (2009) (“Materially adverse actions are distinct from trivial 18 harms, such as personality conflicts or snubbing by coworkers and supervisors; typically, ‘petty 19 slights, minor annoyances, and simple lack of good manners’ will not deter complaints by 20 victims of discrimination.”). 21 But even if they were, plaintiff could not prove those acts were motivated by her gender 22 or protected complaints, as is her burden. With regard to the discrimination claim, witnesses will 23 testify that Hickox was dismissive of anyone who debated him for longer than he wished to 24 argue in a meeting, regardless of their sex. In particular, Lowry will testify it happened to him, 25 as well as White’s predecessor, Rick Mason. Both Lowry and Mason are male. With regard to 26 the retaliation claim, as noted, Hickox was entirely unaware of plaintiff’s complaint to SommersPage 10 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 Evans at the time he acted “dismissive” of her in meetings. That Hickox leaned into Quattrocchi, 2 who had not reported being sexually harassed by him, is further evidence that this conduct was 3 not at all retaliatory. Plaintiff also received an increase in pay in November 2015, following her 4 complaint to Sommers-Evans and Binder, and another in November 2016, following her renewed 5 complaint to the Company and after filing her BOLI complaint. This is not the conduct of an 6 employer that harbors retaliatory animus. 7 C. 8 9 Plaintiff Cannot Hold Kemper Liable for Sexual Assault, Battery, and Intentional Infliction of Emotional Distress Because the Alleged Conduct Occurred Outside the Scope of Hickox’s Employment. Plaintiff also seeks to hold Kemper vicariously liable on her tort theories premised on the 10 kissing incident. To prevail, plaintiff would have to prove that this conduct was committed 11 within the scope of Hickox’s employment. Schaff v. Ray’s Land& Sea Food Co., Inc., 334 Or 12 94, 100, 45 P3d 936 (2002). Whether Hickox’s conduct occurred in the scope of employment 13 depends on the following factors: 14 (1) whether the conduct was of the kind Hickox was employed to perform; 15 (2) whether the conduct occurred substantially within the time and space limits of 16 Hickox’s work for Kemper; and 17 (3) whether the conduct was motivated, at least in part, by a purpose to serve Kemper. 18 Gossett v. Simonson, 243 Or 16, 24-25, 411 P2d 277 (1966) (citing with approval Restatement 19 (Second) of Agency §228 (1958)); see also Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 20 392, 879 P2d 1288 (1994). 21 There is no evidence that kissing employees is the kind of conduct Hickox, Bandon 22 Dunes’ GM, was employed by Kemper to perform. The kissing incident also occurred outside 23 business hours and off Bandon Dunes property. As a result, even if the jury finds agrees that 24 plaintiff has met every element of these claims against Hickox, Kemper is not liable for this 25 conduct. 26 /// Page 11 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 IV. CONCLUSION 2 It is certainly unfortunate that plaintiff was kissed against her will on July 29, 2015. No 3 one is disputing that. However, one kiss does not a lawsuit make. Kemper did everything it 4 reasonably could and should have done to remedy the behavior once plaintiff, belatedly, brought 5 it to Kemper’s attention. Hickox, plaintiff’s one-time champion, sincerely apologized to her for 6 his misbehavior on that evening, and ultimately paid dearly: in November 2016, he lost his job 7 with Kemper, in large part, because of his conduct toward her. Plaintiff, on the other hand, has 8 suffered no lasting consequences to the terms and conditions of her employment. She is still a 9 current employee, and has suffered no adverse action as a result of her complaints. There simply 10 is no conduct for which the jury should compensate her. 11 12 Dated this 6th day of November, 2017. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13 14 By: s/ Caroline R. Guest________________________ Caroline R. Guest, OSB No. 943280 caroline.guest@ogletree.com Amanda C. Van Wieren, OSB No. 135104 amanda.vanwieren@ogletree.com 503.552.2140 Attorneys for Defendant KEMPERSPORTS MANAGEMENT 15 16 17 18 19 20 21 22 23 24 25 26 Page 12 - DEFENDANT KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518 1 CERTIFICATE OF SERVICE 2 I hereby certify that on November 6, 2017, I served the foregoing DEFENDANT 3 KEMPERSPORTS MANAGEMENT, INC.’S TRIAL MEMORANDUM on: 4 5 6 7 8 9 10 11 12 Of Attorneys for Plaintiff Of Attorneys for Defendant Hickox by electronic means through the e-Court filing system.  by mailing a true and correct copy to the last known address of each person listed above. It was contained in a sealed envelope, with postage paid, addressed as stated above, and deposited with the U.S. Postal Service in Portland, Oregon.  by causing a true and correct copy to be hand-delivered to the last known address of each person listed above. It was contained in a sealed envelope and addressed as stated above.  by e-mailing a true and correct copy to the last known email address of each person listed above. 14 16 17 Paula A. Barran Richard C. Hunt Barran Liebman LLP 601 SW Second Avenue, Suite 2300 Portland, OR 97204 Phone: 503-228-0500 Email: pbarran@barran.com rhunt@barran.com  13 15 Mitra Shahri Daniel K. Le Roux Mitra Law Group 1500 SW First Avenue, Suite 800 Portland, OR 97201 Phone: 503-243-4545 Email: mitra@unlawfultermination.com dan@unlawfultermination.com 18 Dated: November 6, 2017 19 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 20 21 22 By: Kai Jones Kai Jones 503-552-2140 kai.jones@ogletreedeakins.com 23 24 034356.000010 31789473.1 25 26 Page 1 – CERTIFICATE OF SERVICE OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. The KOIN Center 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Phone: 503.552.2140 Fax: 503.224.4518